EXHIBIT 10.13
FIRST AMENDMENT, dated June 1, 1998, TO AGREEMENT AND PLAN OF
AMALGAMATION BY AND AMONG AVESTA TECHNOLOGIES, INC. AND AVESTA TECHNOLOGIES
CANADA, INC. AND CARAVELLE INC. AND THE CARAVELLE SHAREHOLDERS AS OF MAY 8, 1998
(the "Agreement") by and among those parties to the Agreement.
W I T N E S S E T H
WHEREAS, the parties hereto have each entered into the
Agreement pursuant to which, among other things, Avesta Technologies Canada will
statutorily amalgamate with Caravelle Inc.; and
WHEREAS, the parties hereto desire to amend certain provisions
of the Agreement as set forth below.
NOW THEREFORE, in consideration of the foregoing and the
mutual representations, warranties, covenants and agreements set forth herein,
the parties agree as follows:
1. SECTION 3.3. Section 3.3 of the Agreement is hereby
deleted in its entirety and shall be replaced by the following:
"ACCURACY OF REPRESENTATIONS AND WARRANTIES. Each of
the Caravelle Shareholders represents and warrants
that it has reviewed the representations and
warranties made by Caravelle and set forth above in
Section 2 and, to its knowledge without having made
any inquiry or investigation, such representations
and warranties are true and correct."
2. SECTION 3.5. Section 3.5 of the Agreement is hereby
deleted in its entirety and shall be replaced by the following:
"REPRESENTATIONS COMPLETE. Each of the Caravelle
Shareholders represents and warrants that the
representations and warranties made by it contains or
will contain no untrue statement of a material fact,
or omit to state any material fact required to be
stated therein, or necessary in order to make the
statements made, in light of the circumstances under
which they were made, not misleading."
3. SECTION 10.13. Section 10.13 of the Agreement is
hereby deleted in its entirety and shall be replaced by the following:
"LIMITATION OF LIABILITY OF CARAVELLE SHAREHOLDERS.
Other than with respect to claims for causes of
action based in fraud, willful misconduct, criminal
acts, or suits brought by, and with respect to, the
Caravelle Shareholders, the liability of the
Caravelle Shareholders hereunder shall not exceed the
sum of $1,200,000, which shall be payable solely in
shares of Avesta Series B Preferred Stock. Each
Caravelle Shareholder's liability shall be in
proportion with his, her or its pro-rata percentage
of ownership of Caravelle Stock."
4. SHAREHOLDERS' AGENT. The parties hereby agree that
Section 10.10 of the Agreement shall be amended only to reflect that Bonnie
Wright shall be the Shareholders' Agent instead of Michael Potter. Accordingly,
all references to Michael Potter shall be deemed to be references to Bonnie
Wright. In furtherance of the foregoing, the designation of the Shareholders'
Agent's address in Section 11.11 of the Agreement shall be deleted in its
entirety and replaced by the following:
Bonnie Wright
c/o Working Ventures
9 Antares Drive
Nepean, Ontario K2E-7V5
Canada
5. All other terms and conditions of the Agreement shall
remain unchanged.
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IN WITNESS WHEREOF, the parties hereto have executed this
First Amendment as of the date set forth below his, her or its signature, to be
effective on the date first set forth above.
AVESTA TECHNOLOGIES, INC.
BY: /s/ Kam Saifi
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ITS: President & CEO
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DATED: May 1, 1998
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AVESTA TECHNOLOGIES CANADA, INC.
BY: /s/ Kam Saifi
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ITS: President & CEO
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DATED: June 1, 1998
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CARAVELLE, INC.
BY: /s/ Lynda Partner
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ITS: President & CEO
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DATED: May 1, 1998
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CARAVELLE SHAREHOLDERS
BY: /S/ Caravelle Shareholders
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